(concurring). I differ with the majority as to the grounds on which the decision should be based. I agree that the demurrer should be overruled, but because the facts alleged show a cause of action for fraud practiced upon plaintiff and his assignors, and not because of breach ■ of contract.
Statements by a party, in negotiating a contract, of matters within its scope but omitted from it, are ordinarily no part of the agreement, and proof of such negotiations as being a part of the contract is usually prohibited under the parol-evidence rule. Derbeck v. Albright, 186 Wis. 515, 203 N. W. 337. This rule forbids any addition to or contradiction of the terms of a written instrument by testimony purporting to show that, at or before the signing of the document, further or different terms were orally agreed upon, the written instrument appearing on its face to express a complete agreement. In other words, “parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument.” 3 Jones, Evidence (2d ed.), p. 2696, § 1483; 1 Greenleaf, Evidence (16th ed.), p. 405, § 275. But conditions are created at times to which the parolevidénce-rule does not apply. Lepley v. Andersen, 142 Wis. 668, 125 N. W. 433.
A promise made without intention of performance, for the purpose of inducing another to enter into the contract, is a fraudulent representation which creates a condition to which the parol-evidence rule is inapplicable. The existence then of a contract is not in controversy, but the existence and the use of a false representation as an inducing cause is. *179The parol-evidence rule is designed to give certainty to a transaction which has been reduced to writing and it is reasonable to forbid additions or contradictions. However, when it appears from a state of facts that a false representation has been made, and a contract has been employed to conceal unethical conduct and as a means to perpetrate fraud, then, as is manifest, a situation exists to which the parol-evidence rule does not apply. It is such a situation which the complaint describes in this case.
It seems clear that the situation here is one upon which the parol-evidence rule has no bearing. That rule, as I have said, is intended for the sole purpose of preventing persons who have become parties to definite, complete, and unambiguous written contracts from being heard to say later that the actual contract was different from that expressed in the writing. In a case such as the present one, where a party seeks damages for fraud, no attempt is made by the defrauded party to change the terms of the written agreement. He admits he made the contract and admits the terms thereof. What he does do is to attempt to show that he was induced by fraud to enter into this contract, and consequently, if the contract is still executory, should not be compelled to perform it (Lepley v. Andersen, supra), or, if the contract is already executed by the defrauded party, as in the present case, should be repaid for the damages he has suffered. In such a case, the reason for the parol-evidence rule not being present, the rule itself is not brought into action.
Without denying that the parol-evidence rule could be invoked in the present case to prevent appellant from attempting to modify the terms of the written contract, I disagree with the majority holding that that rule precludes the appellant from introducing the oral agreement as evidence to support his action for fraud based on his contention that he was induced by respondents’ misrepresentations to enter into the written contract. The subsequent reduction of the contract to writing may have bearing on the question of appel*180lant’s right to rely on respondents’ oral statements, but it should not preclude appellant, in an action for fraud, from showing that such statements were in fact made.
As the only question to be determined is whether all the necessary elements of actionable fraud are present, the initial inquiry under the facts admitted by the demurrer is addressed to the question as to whether the alleged fraudulent statements do constitute' fraud. As stated in the majority opinion, the authorities show two lines of decisions, a majority and a minority rule. The majority of the cases hold that promises made without intention of performance may constitute the basis of an action for fraud. In the decisions of this state there is one case, Tufts v. Weinfeld, 88 Wis. 647, 60 N. W. 992, which has accepted and followed the minority rule. While subsequent cases, with the exception of Jeleniewski v. Eck, 175 Wis. 497, 185 N. W. 540, do seem to approve of the doctrine of the minority rule as expressed in that case, a study of the facts of each case shows them not strictly analogous to the Tufts Case, and I doubt the propriety of following the minority rule.
The case of Tufts v. Weinfeld, supra, was an action in contract by the promisor for defendant’s failure to buy a soda-fountain as agreed, and the promisee’s defense was that the contract had been induced by plaintiff’s promise not to sell to any one else on the same street, that plaintiff intended to break this promise and did break it. The trial court allowed plaintiff only’nominal damages since defendant had rescinded promptly before plaintiff had been put to any expense under the contract or changed his position. Plaintiff appealed. This court upheld the trial court’s holding that defendant’s answer was no defense, although it reversed the decision because of error in assessing damages, and said:
“Such alleged false representations did not relate to any existing fact in prcssenti, but only to future sales. Such *181false promise was no ground for avoiding the written contract. It is entirely unlike a case where a merchant orders goods, knowing himself to be insolvent, without disclosing his insolvency, with the preconceived purpose of not paying for them at all, as in Lee v. Simmons, 65 Wis. 523, 27 N. W. 174, relied upon by counsel. In such case the existing fact of known insolvency is the important factor.”
I am of the opinion that the court erred in making the insolvency rather than the intent not to pay the determining factor on which fraud was based in Lee v. Simmons. Nondisclosure of insolvency in itself cannot constitute fraud, whereas intent not to pay can. Nichols v. Pinner, 18 N. Y. 295. That this is the true interpretation of Lee v. Simmons is clearly shown in Hart v. Moulton, 104 Wis. 349, 358, 80 N. W. 599, and Leedom v. Mayer, 114 Wis. 267, 90 N. W. 169. Taking such a view, the situation described in the Tufts Case is fundamentally the same as that in the Lee Case, and the court might well have followed that case instead of trying to distinguish it.
The Tlifts Case has been variously approved, distinguished, and questioned in subsequent Wisconsin cases. In Horton v. Lee, 106 Wis. 439, 82 N. W. 360, the court found under the circumstances that an opinion as to value of distant lands was actionable fraud. Without quoting the Tufts Case they said in dicta:
“A mere opinion as to the value of property . . . will not void the sale . . . on the ground of 'fraud. . . . Neither will a false representation as to future matters, or a promise to do some act in the future which the promisor does not intend to perform. Patterson v. Wright, 64 Wis. 289, 25 N. W. 10.”
The Patterson Case, referred to in the Horton Case, went no further than to hold that a mere promise to pay and failure to do so does not constitute fraud.' There' was no evidence there of intent not to pay.
*182In Pratt v. Darling, 125 Wis. 93, 103 N. W. 229, the plaintiff had misrepresented an existing fact as well as a future promise. The court said in dicta, citing the Tufts Case:
“Had Killen’s statement been simply to the effect that he would not sell the goods to any other dealer it would not have constituted a fraudulent representation, . . . because this would have been a mere promise and not a false statement as to an existing fact.”
In James Music Co. v. Bridge, 134 Wis. 510, 114 N. W. 1108, the court said:
“Nor can there be any recovery of damages against, the plaintiff, for the reason that the court has found upon sufficient evidence that it was entirely free from fraud: ... The alleged representation made by Peckham that he proposed to continue the business at the old stand was simply a statement of future intention and not of an existing fact, and, while it might be reprehensible if untrue, it affords no basis for rescission. Tufts v. Weinfeld, supra. Furthermore, in the present case there is no evidence that this promise or representation was relied on by the defendants or served as an inducement to consummate the trade.”
In Jones v. Brandt, 173 Wis. 539, 181 N. W. 813, the court said:
“It is urged by appellants’ counsel that the representations were not actionable because they related solely to future events or were mere expressions of opinion. . . . While it is true that mere promises are not a basis for fraud, and that ordinarily fraud cannot be predicated on mere expressions of opinion, yet it is well settled that statements taking the form of expressions of opinion may under some circumstances be treated as statements of facts. [Citing cases.] . . . In J. H. Clark Co. v. Rice, 127 Wis. 451, 465, 106 N. W. 231, . . . the court said: ‘. . . The mere fact that a statement takes the form of an expression of opinion, however, is not always conclusive. Whenever there is any doubt as to whether it is *183made as a mere expression of opinion or as a statement of fact, the question must be determined by the jury or court.’ ”
In Jeleniewski v. Eck, supra, the decision was based on the theory of breach of contract,- but with reference to actionable fraud the court said:
“Although it is elementary that mere broken promises do not constitute actionable fraud, it is not so clear that an action for fraud may not be predicated upon a false statement of present intent, which is material, made with intent to deceive, and relied on by the other party. There is much authority for the view that a condition of mind is as much a fact as a condition of the body, although more difficult to prove; and that therefore a misstatement of a man’s mind is a misstatement of fact. In the present case the promise was coupled by the proof with present intent to break it. The cases supporting the contention that such representations are actionable will be found collected in 12 R. C. L. (Fraud and Deceit), § 28. There is also authority for the contrary view in 12 R. C. L. p. 262, § 29, and the case of Tufts v. Weinfeld, supra, tends to support the view of -the trial court, although the subject was not discussed in the opinion of the court.
“But we have come to the. conclusion that the present case should be decided on another ground.”
In Gauthier v. Atchison, T. & S. F. R. Co. 176 Wis. 245, 186 N. W. 619, the court said:
“We feel compelled to construe the allegations as those relating to future events and not existing facts, and therefore not actionable. Mere promises to pay a debt in the future, although broken, are not fraudulent, although they may be so labeled in the complaint. It is axiomatic that, in drawing a complaint charging fraud, the pleader must state facts constituting the fraud alleged, so that the court may form its own opinion as to its sufficiency.
“Plaintiff’s counsel argue that the former strict rule has been so relaxed that false representations as to value and opinions may constitute fraud, citing Miranovitz v. Gee, 163 *184Wis. 246, 157 N. W. 790, and Ohrmundt v. Spiegelhoff, 175 Wis. 214, 184 N. W. 692. But an examination of these cases will show the peculiar circumstances under which statements of opinion as to value were held actionable and they fall far short of asserting that mere promises to perform acts in the future, although broken, may constitute fraud. Many decisions of this court declare the contrary rule. Sheldon v. Davidson, 85 Wis. 138, 55 N. W. 161; Morrison v. Koch, 32 Wis. 254; Patterson v. Wright, supra; James Music Co. v. Bridge, supra; Horton v. Lee, supra; Tufts v. Weinfeld, supra.”
In Legler v. Tyler, 184 Wis. 238, 199 N. W. 149, the court said:
“That defendants would obtain in the future a purchaser of the property acquired by plaintiff in the exchange was not an assertion upon which plaintiff can predicate an action for fraud. Miley v. Heaney, 168 Wis. 58, 73, 169 N. W. 64; Davis v. Reynolds, 107 Me. 61, 77 Atl. 409; Hazlett v. Wilkin, 42 Okla. 20, 140 Pac. 410."
It must be noted that in the last two cases quoted there was no evidence showing intent not to perform on the prom-isor’s part, at the time he made the promise. That the necessity existed of showing such intent, and not merely of alleging it, was brought out in the Gauthier Case.
Summarizing the cases referred to, we find authority to the effect that statements of. opinion and undisclosed intention not to pay for goods purchased may constitute fraud. The Tufts Case is probably the only one which definitely lays down' the rule there stated, where the facts are at all analogous to those in the present case, and was based on a misapprehension of the significance of the Lee Case. All the cases subsequent to the Tufts Case which refer to it and apparently support it are cases in which the language is dicta or in which some essential prerequisite to an action for fraud is absent, so that these cases do not require the acceptance of *185the rule of the Tufts Case, as applied to circumstances such as we have in the present case. In the Jeleniewski Case the rule of the Tufts Case is definitely questioned. In view of the doubts cast upon the Tufts Case, the fact that it stands unsupported by subsequent Wisconsin decisions as far as application to facts similar to those in the instant case is concerned, the fact that it is contrary to the great weight of authority in the United States, the fact that it cannot be reconciled with the cases, where fraud was found, involving-intention not to pay and statements of opinion on which the other party had a right to rely, and as a matter of reason and justice, I believe that the case should be overruled.
With reference to the question of promises made without intention of performance, it is said in 51 A. L. R. page 63:
“According to the weight of authority, if the person making the promise or statement as to a future event is guilty of an actual fraudulent intent, and makes the-promise or misrepresentation with the intention of deceiving and defrauding the other party, and accomplishes this result, to the latter’s injury, fraud may, under many circumstances, be predicated thereon, notwithstanding the future nature of the representations. This result is reached frequently on the theory that a person’s intention or belief is a matter of fact, and that, therefore, if a misrepresentation is made with regard to the same, the misrepresentation is one of fact. . But the párticular circumstances determine largely the result in this class of cases. This seems to be true', partly at least, for the reason that the questions whether a representation should be regarded as a mere expression of opinion, and whether one to whom it is made ordinarily does and has a right to rely thereon, depend on the nature of the representation and the relation of the parties.”
Respondents are charged with, having made statements to a debtor, whom they were seeking to persuade into giving security for a debt, that they planned to leave the business in the control of the debtor, when, as a matter of fact, they had *186no such plan and then intended to refuse to make good their assurance. This I hold amounts to fraud and deceit. Hart v. Moulton, supra; Leedom v. Mayer, supra; Keeler v. Fred T. Ley & Co. 65 Fed. (2d) 499; 51 A. L. R. 46, and cases cited. While the representation may possess many characteristics of a promise of something to be done in the future, it is more substantial than that, and constitutes the basis of an actionable false representation. To constitute actionable fraud there must be, in regard to some existing matter,' a false assertion by which a party is induced to part with his property. Inherent in an intent is the act prompted by it, and a formed intent “in jurisprudence, whatever may be said of it in metaphysics., is as much a fact as is a physical act performed.” First Nat. Bank v. Swan, 3 Wyo. 356, 23 Pac. 743; Hart v. Moulton, supra; Leedom v. Mayer, supra; Jeleniewski v. Eck, supra; McCready v. Phillips, 56 Neb. 446, 76 N. W. 885; Cerny v. Paxton & Gallagher Co. 78 Neb. 134, 110 N. W. 882, 10 L. R. A. (N. S.) 640.
In the last-named case the complaint arose because a creditor of the plaintiff, who conducted a general merchandise business, induced the plaintiff to give him a mortgage by agreeing that if, upon foreclosure sale, the property should not bring at least $3,800, the defendant himself would bid it in, and, if that happened, would place plaintiff in charge of it as defendant’s agent, continue to conduct the business and apply the proceeds therefrom upon the mortgage until it was paid, at which time the defendant would reconvey the property to the plaintiff. Plaintiff, relying on these representations, executed the mortgage. Defendant, instead of buying the property as agreed, allowed it to be purchased at the foreclosure sale by outside parties for $2,555. Plaintiff, alleging that the defendant had no intention of performing at the time this agreement was entered into, but made such representations for the sole purpose of inducing plaintiff to *187part with his property, sued to recover damages for fraud. Upon challenge to the complaint in that case on the ground that fraud could not be predicated on a promise not 'performed, the court said:
“In Dowd v. Tucker, 41 Conn. 197, the third headnote states this proposition: ‘The procuring of property upon a promise which the party at the time does not intend to perform is a fraud. And it makes no difference whether the property is real or personal.’ In Goodwin v. Horne, 60 N. H. 485, the rule is thus stated: ‘Ordinarily, false promises are not fraudulent, nor evidence of fraud, and only false representations of past or existing facts are actionable. . . . But when a promise is made with no intention of performance, and for the very purpose of accomplishing a fraud, it is a most apt and effectual means to that end, and the victim has a remedy by action or defense.’ The holding of this court in Pollard v. McKenney, 69 Neb. 742, 96 N. W. 679, 101 N. W. 9, is to the same effect. The false promise, therefore, charged to the defendant, coupled with the charge that it was fraudulently made without any intention to perform it, but to induce the plaintiffs to part with their property, constitutes actionable fraud.”
The same result occurs when a contractual promise is made by one then intending not to perform, although the fraudulent promise made verbally is also contained in the contract; that is, the writing of the false representation into the contract does not necessarily deprive the wronged party of his action for deceit and leave him only with an action for breach of contract. Ganley Bros. v. Butler Bros. Bldg. Co. 170 Minn. 373, 212 N. W. 602; Peterson v. Landahl, 86 Minn. 32, 89 N. W. 1131; 56 A. L. R. 13, 83. The rule is thus stated in 3 Williston, Contracts, p. 2709, § 1523 :
“Although relief may be obtained by a defrauded party to a contract in a variety of ways, such relief is always based on one of three general remedies which are open to the defrauded party: (1) A right to damages for being led into *188the transaction. Under this form of relief the injured part}'' does not seek to undo the fraudulent transaction but claims sufficient compensation to make his position as good as it would have been had he not entered into the transaction at all. ...”
The complaint before us charges the defendants with having induced the appellant to part with his property in reliance upon the representation of the respondents that the plans for collecting the money due respondents included the opportunity for the appellant to continue his connection with the business and to redeem it, when as a matter of fact respondents then intended to refuse to keep the promise.
When most of the cases denying recovery in suits for fraud .based on non-performance of promises to do something in the future are carefully analyzed, it will usually be found that there is no evidence' that the party making the promise intended not to perform it, that he made the statements with no intention that the promisee rely on them, that the promisee did not in fact rely on them, or that if he did he should not reasonably have done so to the extent of being induced to enter into the contract. In other words, one or more of the necessary elements of actionable fraud are missing. If, however, all of these necessary elements are in fact present, there would seem to be no good reason why the plaintiff should be denied recovery.
In the present case the necessity of determining defendant’s intention in the matter is obviated by the fact of his demurrer. The only questions, therefore, are whether plaintiff did rely, and whether he was entitled to rely, on defendant’s promises. This may be particularly close here because of the written contract entered into subsequent to the making of the oral promise. The significance of this written agreement, as explained above in the discussion of parol evidence, does not lie in the question of whether or not the *189parol-evidence rule is applicable. Rather it is important as evidence in favor of defendant that plaintiff did not in fact rely on the oral promise. The writing should, and does, have the effect of necessitating that the plaintiff introduce evidence to show that he did in fact rely on the oral promise. But it should not be said that the written agreement constitutes conclusive and irrebuttable evidence of non-reliance so as to justify a verdict for defendant as a matter of law.
Even if it be shown that plaintiff did rely on the oral promise, the question still remains whether, acting as a reasonable man, he should have so relied. One is not entitled to shut his eyes to obvious facts, go blindly, unthinkingly, and unreasonably into a transaction and then be heard to say later that, instead of relying on the natural powers of reason, prudence, and caution with which he was endowed, he chose to put a credulous and unjustified faith in the word of the opposite party. If the transaction here had been between two strangers, or between parties who had had no previous business relations with each other, the trial court’s decision would very probably be justified. But here was a situation where the parties had had business dealings for many years, and their transactions had always been characterized by friendly relations, and fair dealing on both sides, so that it was entirely reasonable for plaintiff to presume that such fairness would continue, a presumption that is enforced by defendant’s definite reassurance at the one moment when plaintiff did show hesitation. It is alleged that the relation between the two was such that the plaintiff was accustomed to look up to the defendants and to follow their advice and suggestions in the conduct of his business. This is nowhere more clearly indicated than in the dealings between them which led up to this very contract.
A situation somewhat similar in principle to that in the present case existed in Arnold v. National A. & C. Co. 20 *190Fed. (2d) 364 (C. C. A. 2d). There, in an action in contract the defense of fraud, arising out of misrepresentations made by plaintiff prior to the reduction of the agreement to writing, and which defendant alleged induced him to enter into the written contract, was'made by defendant. The written contract contained this stipulation:
“It is understood and agreed that this memorandum contains all the terms of the sale herein involved, and that there is no warranty, express or implied, incident to the sale, or other conditions not herein specifically stipulated.”
The trial court held that the parol-evidence rule precluded the admission of evidence of the prior representation. On appeal the judgment was reversed, the court saying:
“. . .If the promisor has agreed to nothing not covered by the instrument the vendee can have no remedy under the contract merely because some prior representations were wrong. If, however, it can prove that the vendor has knowingly deceived it, that the deceit was an inducement to the contract, and that it relied upon it to its damage, the situation is quite different.
“The parol-evidence rule has nothing to do with such a case. . . . Professor Wigmore’s explanation of the inapplicability of the parol-evidence rule is that ‘it is impossible to suppose that the subject of fraud was intended . . . to be covered, since by hypothesis the party upon whom the fraud is practiced does not know of it and therefore could not have had such an intent.’ 4 Wigmore, Evidence (2d ed.), § 2439.
“Whether this is the explanation, or perhaps the more simple one, that the law will not allow a man to profit by his own wrong, is unnecessary to determine; but it seems clear that such clauses as are contained in the contract under consideration do not preclude a defense of fraud. ...”
A distinction should be noted here between the present case and one where the provision in the written contract is so directly in conflict with the oral promise as to put plaintiff on his guard. I agree with the majority that generally in *191such a case relief should be denied. I believe, however, that such denial should be based on the fact that the party did not rely upon the oral statement, or if he did, that he was entirely unwarranted in doing so, and not on an invocation of the parol-evidence rule.
The instant case involves a different situation. The oral promise and the written stipulation are perfectly reconcilable with each other. The written stipulation was a reasonable one to make in a contract in which the personal relationship of the parties was of great importance, and the plaintiff recognized it as such.' Defendants themselves emphasized this by stating that it was customary to include such a clause in all their contracts, and in their conversation with plaintiff they minimized the “terminable” effect of it. What plaintiff did not perceive was that a stipulation which is of common occurrence in a contract of this sort might be made the instrument whereby the defendant could with impunity induce the plaintiff to act to his own detriment and to the defendant’s advantage, by making promises which defendant never intended to keep. Perhaps he was unreasonable, in his dealing with parties in whom the allegations show he placed faith, not to realize that it might be used against his interests. But this question cannot be determined as a matter of law.
It is not necessary to find a fiduciary relation between the parties. The question here is one of reasonableness, not one of the legal status of fiduciary relationship. Perhaps plaintiff did not exercise the highest degree of prudence and caution. The law does not require that he should. It only requires that he act reasonably. And to say that the plaintiff, lulled into a less acute suspicion of those with whom he was dealing and induced to descend somewhat from an extremely high standard of caution, by his experience of many years of fair and equitable treatment at the hands of the *192defendants, acted unreasonably as a matter of law, is to disregard entirely the established and well-recognized principles of fair-dealing and trustworthiness that mark the transactions of society, and are as basically essential to its business intercourse as the enforceability of contract itself.
It might be argued that to hold as I hold would render all contracts uncertain. The barriers which the plaintiff must hurdle before he can recover' — in other words, the necessity of proving defendant’s intention, his own reliance, and the reasonableness of such reliance — effectively preclude any such danger. Such an argument carries no weight in the cases involving fraudulent misrepresentation of an existing fact, nor should it in this case. But even if there were such danger, its ill-effects would be small ■ compared with those resulting from the opposite holding, under which it would be possible for unscrupulous persons, by taking advantage of the normal and reasonable faith of mankind, by the use of unfair and misleading practices and fraudulent promises, and by the use of unobtrusive, illusory, and indefinite written stipulations, to make a practice, of driving hard, unjust, and sharp bargains, acting fraudulently in every sense of the word except the restricted technical and legal sense that the court had adopted, and their be able to look to the courts for the protection of his ill-gotten gains to the detriment of the person he had defrauded.
Cerny v. Paxton & Gallagher Co., supra, was based on a chattel mortgage which the debtor was induced to sign by the representation that he would be given a certain amount of protection in the way of an opportunity to redeem his business. In the case at bar the same promise was- made and is not excluded from consideration simply because the representation appeared in the instrument signed by the parties. 51 A. L. R. 46, and cases cited. The provision to terminate the employment by respondents- is not so incon*193sistent with the promise of employment as to have caused the plaintiff to suspect that the promise of employment and of compensation of $150 per month were meaningless and idle phrases so far as Beers was concerned. The Agency was indebted to the insurance companies, but it did not have to enter into this agreement.
A cause of action for damages resulting from' deceit seems to me to exist and a complaint therefor is good when the fact appears that a promise of employment’and continuing management of the business was made to induce a debtor to transfer his business to his creditor, under an arrangement by which the debtor is promised that he will have an opportunity to pay his debt and save his business through employment in and management of it, when the creditor then intended to violate the promise. A contractual promise made with the undisclosed intention of not performing it is a fraud. . Restatement of the Law of Contracts, p. 900, sec. 473.
I am not considering the mutuality or lack of it in the clauses under discussion, but whether the complaint shows that a promise to employ Beers and afford him an opportunity to redeem his business was made with intent on the part of the promisors not to give Beers the position, and whether the writing is so worded as to preclude him from a right to rely on the oral promises. The writing repeats the promises and plausibly presents reasons for Beers and his associates to hope for and expect its fulfilment. The words by which the trustees sought to retain the right to use their discretion in the matter of terminating the agreement, and on which they now rely to destroy appellant’s cause of action based on the alleged false representations, fit too well into the arrangement to destroy the confidence created by the promise and reiterated in the contract in the words which precede those reservations. It is not only difficult, but impossible, *194for me to find anything in the writing inconsistent with and of such effect as to destroy the promise or to bind appellant, in the absence of default on his part, to accept the result forced upon him as described in the complaint. ITe and his associates, under the pleadings, had a right to rely on the express statement of that promise, and for the purposes of this complaint it is the equivalent of an existing fact which was misrepresented to them. According to the complaint, the trustees’ intention not to hire or permit him to carry on the business was known only to them, was unknown to him, and was the inducing cause of appellant’s act in signing the instrument. This case, under the complaint, ought to stand as one where parties seeking relief entered into a compromise or gave security for indebtedness, induced thereto by fraudulent representations of a party seeking an advantage. 2 Cooley, Torts (3d ed.), 936. The complaint alleges the immediate exclusion of appellant from the premises as soon as the paper was signed and in the respondents’ possession ; the non-existence of the plan of employment represented as existing and relied upon by the appellant, and the fraudulent representations in relation to it of the respondents. It alleges the representation that Beers would be employed by respondents; the contract reasonably construed indicates the intention to employ him; that when the contractual promise of employment was made the promisors intended then not to perform, that they were using the promise to induce the appellant and his assignors to transfer the business to them.
The question of the amount and measure of damages is not before the court and requires no discussion,at the present timé. It is important to note, however, that circumstances may arise which will result in a material difference in the damages recovered, depending on whether the case is tried on the contract theory or the tort theory. Since this may prove to be one of those cases, the basis of the court’s decision is as important as the decision itself.
*195As to the assignability of the cause of action, the general rules for determining this quality have long been associated with the idea of survivability. A cause of action which survives the death of the original owner passes to a successor. The cause of action passes into the possession of another. An assignment accomplishes nothing more. The reason for one must be based on the same legal theory as the other. This cause of action is one which survives and it is assignable. I think, therefore, that the second ground of the demurrer fails also. Zartner v. Holzhauer, 204 Wis. 18, 234 N. W. 508; Tyson v. McGuineas, 25 Wis. 656; Webber v. Quaw, 46 Wis. 118, 49 N. W. 830; Lehmann v. Farwell, 95 Wis. 185, 70 N. W. 170; Samuel Meyers, Inc., v. Ogden Shoe Co. 173 Wis. 317, 181 N. W. 306; Milwaukee v. Boynton Cab Co. 201 Wis. 581, 229 N. W. 28, 231 N. W. 597.